November 2011 posts

November 30, 2011

I have the awful task of informing you that Professor Jon Van Dyke passed away earlier today while at a conference in Australia.

I am personally so very sorry to have to give you this news.

Jon was admired, loved, and vitally important throughout a remarkable number of different circles of people stretching far beyond our Law School, but we were particularly and truly blessed to have the direct benefit of his many years of inspirational teaching and scholarship, remarkable public service, and deep and abiding friendship.

There is and will be no other like him.

Jon apparently died in his sleep and we are awaiting further details about memorial arrangements.

Tomorrow we will gather for an All School Memorial during what would have been his Constitutional Law 1 class, beginning at 1:30pm in Classroom 2, and there will be another Evening Memorial beginning at 5:30 pm, also in Classroom 2, when his evening Constitutional Law 1 class would have been held.

Throughout the day, members of the community are invited to come to the Moot Courtroom to share memories, to mourn, and to comfort one another.

Our thoughts and prayers are with his wife, Sherry Broder, and with their children and family.

A book for condolences will be available.

Any students who feel that they cannot attend other classes or meet other obligations will be excused. We are in the process of arranging counseling and making appropriate adjustments for his classes and for Law School exams.

Like so many others, I find it virtually impossible to think about the Law School and our community without picturing Jon working away and bringing his extraordinary array of different skills to bear on all kinds of genuinely important projects and commitments.

Jon Van Dyke will certainly not be forgotten, but he will be hugely missed.

Professor Van Dyke ("JVD" as we knew him) taught at least three generations of Hawaii's lawyers Constitutional Law and International Law, me included. Ask practically any alum of U.H. Law from whom they learned Con Law, and their answer would be JVD. I use the tools he taught me every day in practice. He was also an expert in the Law of the Sea. He was a committed advocate for native Hawaiian rights. We had some differences there, but we never lost our respect, or ability to talk to each other and share ideas. Recently, he made a presentation to our firm's lawyers about his work for the Office of Hawaiian Affairs and his efforts for sovereignty. We had no clue this would be his last visit.

Those of us who consider JVD a teacher, a mentor, and a colleague are not prepared to lose him so soon, and so suddenly.

The EPA has filed its merits brief in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the agency's assertion via a "compliance order" that a portion of their land are "wetlands" and that they violated the Clean Water Act.

The EPA's brief asserts that the compliance order the Sacketts received, although it stated "EPA's finding that petitioners had violated [the CWA] by discharging fill material into regulated wetlands without a permit," Br. at 6, was merely an invitation to contact the EPA and work things out with the agency. According to the brief, the compliance order was only EPA's "view" that the Sacketts had violated the CWA, and served only to inform them that "unless they took specified measures to achieve prospective compliance with the Act, the agency might seek penalties and/or injunctive relief through a judicial enforcement action." Br. at 10.

The gist of the brief is that the order really didn't do anything substantive, so the Sacketts could not bring a "pre-enforcement challenge" to the compliance order under the Administrative Procedures Act, but had to wait to challenge jurisdiction until the EPA went after them in a judicial enforcement action. Or they could have complied with the compliance-not-enforcement order. In other words, a property owner who receives a compliance order has two choices if she believes that the agency's assertion of jurisdiction is wrong: she can either file an application under protest for a permit that she doesn't think she needs, or she can go ahead without a permit and take the risk that she is wrong and will end up on the wrong end of an enforcement action. But an immediate jurisdictional challenge and judicial review? No dice, according to the agency, it's premature.

Here's how the brief treats the due process claim:

Finally, this Court’s resolution of petitioners’ due process claim should reflect an awareness that regulated parties have no general constitutional right to advisory judicial opinions when the existence of legal uncertainty presents them with difficult practical choices. Even if EPA had never issued a compliance order, petitioners would (or should) have been aware that their filling of wetlands subjected them to at least the possibility of an EPA enforcement action. Petitioners could have responded to that possibility by (a) removing the fill and restoring the site to minimize the likelihood of an enforcement suit; (b) initiating consultation with EPA and/or the Corps in an effort to develop a mutually acceptable solution; or (c) continuing to act on the assumption that the CWA did not apply to their discharges, and asserting that position in response to any EPA enforcement suit.

Br. at 54.

In case it wasn't clear enough, here's the EPA's message: even if you don't think your land contains "wetlands" you are aware that it might, and that's good enough. We're not sure how that assertion squares with the concept of either limited federal authority (migratory bird rule, anyone?) or the due process concept of fair notice when the agency is saying that your only legitimate responses are to (a) comply, (b) try and work it out, or (c) not comply and take your chances. That's a tough choice when by the compliance order, the EPA found "that petitioners had violated [the CWA] by discharging fill materials into regulated wetlands without a permit." Br. at 6.

The top-side brief for the Sacketts is posted here. The amicus briefs in support of the Sacketts are available here.

Arguments are set for January 9, 2012. Here is the Court's docket report.

Some background. Only "native Hawaiians" are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the property tax exemptions. The Hawaii court dismissed the case for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians).

The challengers filed a cert petition (posted here), asking the Court to review this Question Presented:

In Rice v. Cayetano, 528 U.S. 495 (2000), this Court held that a state classification of voters according to whether they are "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778" was an impermissible racial classification under the Fifteenth Amendment. Respondents have employed the same classification to determine whether a taxpayer is eligible for certain long-term leases that entitle lessees to significant tax exemptions. No equivalent exemption is available to petitioners because they do not fall within that racial classification.

Petitioners paid their taxes under protest and then sought refunds from their respective counties on the ground that their tax bills resulted from a racial classification inconsistent with the Constitution. The Hawaii courts declined to apply Rice or subject the classification to strict scrutiny. The question presented here is:

Whether the Hawaii courts erred in failing to recognize that petitioners have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a State or municipality from creating tax exemptions that are available only to members of a certain race

Because the petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act, the U.S. Solicitor General was served a copy, but the SG has not weighed in.

Mark your calendars: on Tuesday, January 3, and Wednesday, January 4, 2012, at 7:30pm and 9:30pm, the docfilm Battle for Brooklyn will make its exclusive Hawaii screening at the Doris Duke Theater at the Honolulu Academy of Arts. There will be Q & A sessions after the showings.

This is an especially timely film for Hawaii audiences -- it chronicles one homeowner's years-long fight to save his condo from being taken by eminent domain so the land could be used for a new arena for the NBA's New Jersey Nets, and Honolulu is in the opening phases of the $5 billion rail project, the most expensive public works project in its history. The rail project will require the taking of hundreds of homes and businesses, and Battle For Brooklyn's inside look at the politics of eminent domain is an eye-opener about how the process of taking private property really works.

We reviewedBattle for Brooklyn after it made its public debut a few months ago (the filmmakers presented a rough cut preview at the annual ALI-ABA eminent domain program), and we recommended it. We even sat down for a few minutes with director Michael Galinsky for a short interview. Recently, it made the short list of documentaries being considered for the Academy Award.

Battle For Brooklyn made its premiere in Brooklyn, naturally, and it has been showing in the New York area on an extended run. Unfortunately, there's only one print of the final film because prints are very expensive, about $7,500 apiece, so it has not been more widely released. But luckily, the filmmakers have graciously agreed to bring it to our fair shores for a (very) limited run.

The film has received excellent reviews. Our colleagues at the California Eminent Domain Report agree ("If you're in the right of way industry, this is a must see. Or, if you simply like tales of David versus Goliath, go get yourself a movie ticket."), as does the LA Times ("a deft look at a reluctant crusader and how financial sway and political override can so effectively trump the power of the average citizen"), the indieWIRE blog ("it’s inspiring to see Americans put a lie to the suggestion that they are apathetic, self-obsessed, greedy, fat, and stupid"), an LA blogger ("This weekend a movie opens in Los Angeles that everyone who cares about neighborhoods should see ... We may be on opposite sides of America, but the battle for Brooklyn is our fight in Los Angeles, too."), and Yahoo Movies ("The timing is exceedingly relevant to Los Angelenos as they listen to the on-going discussion about building a NFL stadium in downtown Los Angeles."). Here are reader reviews from the NY Times.

November 26, 2011

Following a court order prompted by a Honolulu Star-Advertiser lawsuit, Gov. Neil Abercrombie released the names of nominees to the Hawaii Supreme Court and two Circuit Court judgeships.

Attorney General David Louie said the governor still disagrees with the court decision.

However, the Judicial Selection Commission, which screens and forwards the names of judicial nominees to the governor, decided last week to release the list of candidates when it submits the list to the governor.

"In light of the changed circumstances with the Commission's actions, judicial applicants will no longer have any expectation of confidentiality," Louis [sic] said.

Here is the AG's News Release. We represent the Star-Advertiser in the case. Here are the documents from that case.

Update: noting that "Abercrombie still disagrees with a ruling but effectively waives the state's appeal rights," the full story from the Sunday Star-Advertiser, Gov releases judicial candidate list:

"We are pleased that Governor Abercrombie has decided to follow the court's decision and no longer pursue this matter," said Dennis Francis, president and publisher of the Star-Advertiser. "As we have said from the beginning, transparent government is almost always the best approach."

Diane Hastert, the Star-Advertiser's attorney in the case, said, "We're gratified it appears there will be no need for further litigation to secure the people's right to know the names appearing on Judicial Selection Commission's lists. The Star-Advertiser stepped forward and took responsibility to protect the public interest at a crucial time. The Court, the JSC and now the governor all agree the names will be released, which is precisely what our suit sought."

Last week, we filed the ABA's amicus brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts. Our brief for the ABA supports the lawyer-petitioner, arguing that he should be able to claim those immunities.

November 25, 2011

Although the focus of this blog is land use and related topics, our practice involves more than that -- we also take appeals in other areas of law presenting unsettled or untested questions. Here's the latest example, a case that asks what standards govern the Family Court's evaluation of an application for a civil TRO in light of a parent's fundamental right to discipline his or her children (which includes the right to use reasonable corporal punishment).

In Hamilton v. Lethem, No. 27580 (Haw. Ct. App. June 30, 3011), the Hawaii Intermediate Court of Appeals concluded that the TRO process did not violate a parent's rights, and affirmed the Family Court's issuance of a restraining order. Earlier this week, the Hawaii Supreme Court agreed to review these Questions Presented:

1. When determining whether to issue a TRO, does the parental right to discipline children require the application of clear and articulable guidelines to distinguish truly abusive behavior from actions that are "moderate or reasonable discipline [that] is often part and parcel of the real world of parenting?"

2. When considering whether to issue a TRO, must the Family Court recognize that a non-custodial parent maintains a "residual parental right" to discipline his child during a period of unsupervised visitation, including the right to discipline the child for morals?

This case has been to the Hawaii Supreme Court before. In Hamilton v. Lethem, 193 P.3d 839 (Haw. 2008), the court held that the issues were not mooted by the expiration of the TRO, because the "collateral consequences" of a TRO.

More here from Damon Key colleague Rebecca Copeland. The cert application (in Hawaii's appellate system, petitioners "apply" for cert review, which is either "accepted" or "rejected") we filed is available below.

November 23, 2011

This is a post for those who decided they wanted to visit a law blog today instead of (a) filling their bellies with the usual Thanksgiving fare; (b) watching football on TV; (c) gearing up for the insanity of the day-after shopping; or (d) pretty much anything else.

“What these lawsuits say is that in our country, not even the government is above the law,” said David Boies, the lawyer at Boies, Schiller & Flexner, who represents Mr. Greenberg and Starr. “When the government takes action, although it has enormous power, there are legal limits to what they can do. One of those limits is that they cannot take private property even for a good purpose if they do it in violation of legal protection or don’t give just compensation.”

The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It's not a land use case, but since every land use and takings lawyer must know the contours of section 1983 law, we thought we'd follow along. Of course, the issue is also of great interest to the ABA's State & Local Government Law Section (I chair the Section's Condemnation Law Practice Area, and run the CLE programs for the Section), so when ABA asked if we and our SLG colleagues would do a brief, we naturally agreed.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city's internal investigation of a city employee, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions. The Ninth Circuit concluded he could not avail himself of that defense, merely because he was not a government "employee."

Our brief argues that he should be entitled to claim the same immunity since he was acting in the same capacity as a government-employed lawyer. The brief also points out that a contrary rule will severely impact the willingness of private lawyers to provide legal services to state and local governments.

The merits Brief of the Petitioner is posted here, and we will post the other amicus briefs in the case shortly.

Here's the latest from the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in most regulatory takings claims against the federal government), CCA Associaties v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).

This is an appeal of a Court of Federal Claims decision holding that two federal statutes worked a taking under the three-part Penn Central test because they abrogated the rights of the owner of a Louisiana apartment building to prepay its way out of providing low income housing. The CFC held that the programs set up under the statutes in effect forced CCA to continue to provide low income housing -- a public good -- and that it was a taking.

The Federal Circuit reversed:

The United States appeals from the decision of the Court of Federal Claims that the Emergency Low Income Housing Preservation Act, Pub. L. No. 100-242, § 202, 101 Stat. 1877 (1988) (ELIHPA), and the Low-Income Housing Preservation and Resident Homeownership Act, Pub. L. No. 101-625, 104 Stat. 4249 (1990) (LIHPRHA) resulted in a temporary regulatory taking. CCA Associates (CCA) cross-appeals, asserting that ELIHPA and LIHPRHA resulted in a breach of the government’s contractual obligations. Because we are bound to apply the economic analysis outlined in Cienega X, we conclude that the Court of Federal Claims determination on the temporary taking must be reversed. Because the Court of Federal Claims correctly held that our Cienega IV precedent forecloses CCA’s breach of contract claim, we affirm the judgment against CCA on the breach of contract claim.

Slip op. at 2. Check it out if you are interested in how the federal courts are applying the Penn Central test (in the few instances they consider such issues). Be sure to read this article by Bill Wade for more background on the Penn Central test, Cienega X, and the issues in the case.

November 19, 2011

Here are three more items from the Honolulu media about the case in which the Star-Advertiser is seeking the Judicial Selection Commission lists from the Governor (Star-Advertiser v. Abercrombie, No. 11-1-1871-08). Disclosure: we represent the Star-Advertiser in this case.

Off The Beat: Should OIP Be Patting Itself on the Back? - Honolulu Civil Beat's editorial tracking the arc of the case, including the drama surrounding the Office of Information Practice. After one OIP director was replaced after the office issued an opinion about the JSC list, her replacement pretty much washed the OIP's hands of the matter saying there was nothing more it could do, and the only alternative left was to get a court ruling. Now that the court has ruled, the OIP is saying the process worked. Bottom line to Civil Beat: OIP should either "stand up and be counted," or not pat itself on the back.

Strengthen open record office - the Star-Advertiser's editorial: "In a stark rebuke of Gov. Neil Abercrombie, the Judicial Selection Commission has decided to make public the names of finalist candidates for future judgeships, lists that the governor had tried to keep secret. The commission's policy change is a major victory for open government and a nudge to the governor to recognize and adhere to the public's right to know."

November 18, 2011

The Hawaii Attorney General today issued a statement responding to the recently-announced changes in the Judicial Selection Commission Rules, whereby the Commission said that from here forward, it would publicly disclose the names on the list of judicial nominees at the same time it transmits those lists to the "appointing authorities" (governors and Chief Justices).

He also announced some thoughts about whether the Governor will appeal the ruling that he must disclose JSC lists. [Disclosure: we represent the Star-Advertiser in this case.].

Here's what the AG had to say:

"We recognize the right of the Judicial Selection Commission to change its rules and decide upon its own authority whether to publicize the names on the list. But this does not change the holding in the Pray vs. Judicial Selection Commission case that provided the Governor with discretion to release the names, contrary to Judge Sakamoto's ruling against the State in the recent case filed by the Star-Advertiser. Until we have had the opportunity to review and evaluate the written decision issued by Judge Sakamoto, no decision has been made on whether we will pursue further legal review in the Star-Advertiser's case.

"With respect to releasing the names of future nominees, if the Commission publicizes the names of final judicial candidates when they provide those names to the Governor, the practical effect moving forward is that the names are available to the public regardless of who releases them. This does not necessarily mean, however, that an appeal will not be taken in the present case, which was decided prior to the Judicial Selection Commission's rule change."

We've been kind of busy in the last few days with a couple of appellate briefs, so haven't had a lot of time to post up the latest cases and articles of interest. But here's what we are reading today, in between brief writing:

Hawaii Supreme Court Nominees Will Be Public - Courthouse News Services writes about the case in which we represent the Star-Advertiser in its case to compel the governor to publicly disclose the lists of judicial nominees he receives from the Judicial Selection Commission. More on the case here. The Reporters Committee for Freedom of the Press also reported on the story here.

Beyond "NIMBY" - a post on Legal Planet, a blog produced by enviro lawprofs, advocates that we abandon the term NIMBY. I like "I GOT MINE."

November 17, 2011

In this press release issued yesterday, the Hawaii Judicial Selection Commission announced it has amended its rules so that from now on, the JSC "will release the names of the nominees transmitted to the Governor or Chief Justice at the time they are transmitted and will be permitted to disclose statistical and historical information that summarizes patterns and trends in judicial selection." More from the Star-Advertiser here.

In other words, the lists (of not less than four, and not more than six) names of nominees whom the JSC deem "qualified" to fill vacancies on the Circuit Court, Intermediate Court of Appeals, and the Hawaii Supreme Court, will now be made public at the same time the list is given to the Governor.

This is a new direction, because until this change, the JSC Rules have always barred the Commission from disclosing even the names of nominees: "[s]ince the [JSC] rules were first adopted in 1979, they have prohibited the JSC from disclosing its main work product – the names of the nominees on the lists presented to the Governor and Chief Justice as appointing authorities." Although the JSC has never released these names, for the past sixteen years, Governor Cayetano and Governor Lingle routinely released the lists after receipt from the JSC: Cayetano released the names once he announced his appointment (but before Senate consent), while Lingle released the lists immediately upon her receipt from the JSC, and before she picked her appointee.

Governor Abercrombie, however, broke with this tradition and refused to release the lists, even after the Senate consented to his appointments. He claimed that disclosure of the names of judicial nominees would "frustrate" the process of choosing judges, because lawyers would be reluctant to apply to the JSC if they knew their names might eventually be revealed. In August, the Honolulu Star-Advertiser brought a lawsuit under the state's public records law to compel the Governor to disclose the lists. [Disclosure: we represent the Star-Advertiser in that case.].

Earlier this week, the circuit court granted the Star-Advertisersummary judgment, and ruled that Governor Abercrombie must disclose JSC lists. Details here. The Governor has not announced whether he intends to appeal that ruling.

By amending its rules to allow the public to know the names of the nominees at the same time a governor does, the JSC is acknowledging there are no good reasons to keep these lists secret once the Commission has concluded its deliberations, and that there are excellent public policy and empirical reasons for the public to have access to this information at the same time a governor does. Contrary to Governor Abercrombie's arguments about disclosure "frustrating" the process, it seems the JSC has concluded that disclosure makes the process better, a total vindication of the Star-Advertiser's arguments.

November 16, 2011

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up.

November 15, 2011

The Honolulu Star-Advertiser's story on yesterday's decision by Circuit Judge Karl Sakamoto in the Star-Advertiser's lawsuit to compel Governor Abercrombie to cease keeping the names of judicial nominees from the public: Judge to gov: Make names public. We represent the plaintiff:

"We are extremely pleased," said newspaper attorney Diane Hastert. "Judge Sakamoto thoroughly analyzed all of the complex issues in the case and concluded the public has the right to know the names of individuals on the Judicial Selection Commission lists."

. . . .

Deputy Attorney General Charleen Aina defended the governor's position that the release would be a "frustration" of the government's interest in the appointment process.

She told Sakamoto the process includes the commission screening and recommending the names confidentially, and the disclosure by the governor would "interfere" with that process.

But attorney Robert Thomas, who also represents the newspaper, told Sakamoto the governor cannot establish that the release of the names is a factor for a lawyer considering a judgeship.

He also said disclosures by the previous governors show that the process wasn't "frustrated."

"The governor's theory really cuts against the strong public policy of disclosure and transparent government" in the state open-records law, Thomas said.

Yesterday, we posted the California Supreme Court's decision in Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), a case in which the court held that a lender's withdrawal of the condemnor's deposit in a quick take action does not waive the property owner's defenses. We were going to digest the opinion and provide some analysis now that the above case has been decided, but it looks like Gideon Kanner has beaten us to it, posting "A Bit of Common Sense in California. Wow!." He writes: "Since we freely criticize the many shortcomings of eminent domain law, it seems only fair that we should deliver a loud attaboy to California Supreme Court Justice Ming Chin and his colleagues who have just restored some common sense to California law of eminent domain." Read the entire post - it's well worth it.

Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011) is not the typical case for this blog. It's not a land use case, and involves a question of the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983.

But since section 1983 claims and defenses are something that every land use lawyer must understand, we thought we'd post it, even though it involves an employment matter.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city's internal investigation of a city employee, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions.

In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of the Supreme Court declined to extend qualified immunity to private prison guards, but expressly noted a historical basis of immunity for private lawyers working "at the behest of the sovereign." Id. at 407. The Richardson majority also expressly did not preclude qualified immunity for private parties working as "adjunct[s] to government." Id. at 413. Based on Richardson, the Sixth Circuit has accorded immunity to such "private" lawyers. Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997). Contravening Richardson and expressly disagreeing with Cullinan, the Ninth Circuit in Filarsky denied qualified immunity to Filarsky solely because of his "private" status, even though it accorded qualified immunity to all of the individual government actors involved, thereby completely exonerating them for the very same conduct, which did not violate any clearly established rights.

The Supreme Court granted cert to resolve the circuit split, and is considering this Question Presented:

Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a "private" lawyer rather than a government employee.

Under California's "quick-take" eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacinto); see also Code Civ. Proc., §§ 1255.010, 1255.410.) Any defendant in the condemnation action — which includes anyone the public entity knows to have or claim an interest in the property (§ 1250.220, subd. (a)) — may apply to the court to withdraw all or any portion of the deposit (§ 1255.210). Section 1255.260 provides that, "[i]f any portion" of the deposit "is withdrawn, the receipt of any such money shall constitute a waiver by operation of law of all claims and defenses in favor of the persons receiving such payment except a claim for greater compensation." The Court of Appeal in this case held that, under this statute, if a lender holding a lien on condemned property applies to withdraw a portion of the deposit, and the property owner does not object to the application, the lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal's judgment.

Slip op. at 1-2 (footnote omitted).

We'll review the opinion and post more when we get a chance. But this looks about right.

As we noted here, the circuit court today ordered Governor Abercrombie to make public the list of nominees for the vacancy on the Hawaii Supreme Court (eventually filled by Justice McKenna) that was transmitted to him from the Judicial Selection Commission earlier this year. More from the Star-Advertiser's breaking news story here.

In a ruling delivered today, Circuit Judge Karl Sakamoto ordered Governor Abercrombie to publicly release the list of names transmitted to the Governor by the Judicial Selection Commission earlier this year for the vacancy on the Court that was subsequently filled by Justice Sabrina McKenna. Star-Advertiser v. Abercrombie, No. 11-1-1871-08. We represent the newspaper in this case.

West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), a petition we've been following that asked whether the nexus and "rough proportionality" tests for a regulatory taking in Nollan and Dolan are limited to government demands for land, has been denied.

California and Texas say the nexus and rough proportionality standards apply to all exactions (we don't want the government blackmailing permit applicants, regardless of the tribute that is demanded), while Florida says they don't. Other courts have also weighed in on one side or the other, and lacking guidance from the Supreme Court, will continue to flounder about on this issue.

We suspect the Court's reluctance to address the confusion has less to do with the issue at hand (must all exactions be related and proportional to the predicted impact of the development) and more to do with the Court's inabliity to describe the nature of the cause of action after Lingle. In that case, the Court "relocated" the "substantially advance" test from takings law to due process, even as it reaffirmed the validity of Nollan and Dolan. If we had to guess, we'd say Justice Kennedy wouldn't mind viewing Nollan and Dolan through due process lenses, while Justice Scalia ain't having none of that.

Meanwhile, while the Court tries to make doctrinal sense of exactions, local governments who demand them, and property owners who have to choose whether to acquiese to them, are left wondering whether and what is legal, and the federal constitutional standard now varies from state to state.

November 12, 2011

The big news in Hawaii this week is the Asia-Pacific Economic Cooperation international summit, currently underway in Honolulu. Waikiki is on lockdown as leaders from 21 Pacific Rim nations, including U.S. President Obama and a lower level functionary from "Chinese Taipei," come to town for a confab on free trade and economic cooperation in the region. Plus, they might have to dress up in the national costume of the host country. (Query: is aloha wear the "national costume" of the host United States? Not really, but it is a regional style, and making these stuffed shirts dress up like Elvis or Jack Lord seems like a hoot; we can't wait to see Australia's Julia Gillard in a muumuu.) Big stuff.

What do Hawaii's leaders hope to accomplish by having the eyes of the world turned on us during the summit? In Opportunity comes ashore, the daily paper reports that among other things, they wanted the world to see Hawaii as a good place to do business:

If this week's Asia-Pacific Economic Cooperation summit is a success, tourism and business leaders hope to get an "APEC affect," where images of world leaders amid the islands' scenic splendor will solidify Hawaii as a place for business as well as leisure.

"A lot will be gained by demonstrating that Hawaii is more than a place to vacation," said Randy Tanaka, chief operating officer for the APEC 2011 Hawaii Host Committee. "'Hawaii is a great place to meet your Asian counterparts' will be part of the message."

Besides potentially boosting business tourism, the event also offers Hawaii businesses in industries like renewable energy, health and life science, astronomy and earth and ocean sciences the chance to build relationships with Asia-Pacific partners and consumers, APEC supporters say.

In the run-up to the conference, they really spiffed up the town: various semi-permanent and highly visible homeless encampments were picked up and moved somewhere, new palm trees were planted on the main route from the airport to Waikiki so that the motorcades could see a tropical scene whiz by on an otherwise ghastly industrial stretch of the Nimitz Highway, and it seems like Fortress Honolulu at times since security is tight to insure the situation doesn't devolve into anarchist-fueled riots like other high-level confabs. Traffic is a mess, and even Diamond Head is closed.

But are these efforts to portray Hawaii as a "good place to do business," like the apocryphal Potemkin Villages in czarist Russia, mere window dressing on an otherwise bleak economic climate, the latest incarnation of the tired cliché of Hawaii as "the [blank] of the Pacific" (fill in the blank with crossroads, Geneva, tech hub, health care center, and so forth)? Consider this:

Hawaii has the most heavily regulated land on the planet. The labrynthine permit requirements are "challenging," and take years to successfully navigate, if they can be navigated at all.

"Drawbridge protectionism," the phenomenon whereby those who come to a locale want to "preserve" it in the form it was when they arrived, is taken to a new level in Hawaii.

The Hawaii Supreme Court has ruled that "western concepts" of property law and the doctrine of exclusive possession "is not universally applicable in Hawai'i." The court has also expanded the public trust doctrine to cover more and more.

The trust/beneficiary model, where supposedly learned experts make decisions for the uninformed, is the reigning mindset both in government and the private sector.

When the voters of Kauai County adopted a Proposition 13-like property tax measure that limited annual increases, county politicians filed a lawsuit in which they were both the plaintiff and the defendant, to invalidate it. The Hawaii Supreme Court approved of the collusive lawsuit and struck down the the measure.

Projects large and small that could make it better for Hawaii consumers and businesses are routinely attacked and often defeated, if not in the entitlement process, then in the courts. Exhibit "A" is the (late) Hawaii Superferry.

Military spending, tourism, and government are the largest sectors of the Hawaii economy. Virtually nothing gets done without public worker union approval, even the decision about whether Good Friday is a state holiday (it is, and is not unconstitutional according to the Ninth Circuit).

Could any other state legislature have concocted a plan to keep consumer gasoline prices down by passing a law controlling how much rent gas station owners could charge their tenants?

Add to the above the cost of living, which equals or exceeds that of an island on the other side of the country, Manhattan, and is tied with California for the nation's highest, and you have a population stretched thin. Consolation prize: Hawaii did win best "quality of life" (if you don't factor in the taxes, the cost of living, the economy, the lack of real opportunity, etc., ... Other than that Mrs. Lincoln, how was the play?).

It appears that with APEC, the U.S. wants to hitch its economic wagon to Asian growth. The question for Hawaii is if this strategy is successful, whether our local economy will also benefit. Contrast those points with this story, about how a small business in Montana is leveraging the free trade agreements coming out of APEC to grow a business in the 900-resident town of Harlowton:

Imagine a place that is perhaps the complete opposite of Hawaii. A state that is now covered with snow, where desolate prairies meet high mountains, where numerous rivers flow to the Pacific and the Gulf of Mexico. This state is immense, taking 10 hours to cross it, over 147,046 square miles compared to Hawaii’s 10,931.

The writer omitted one important difference between Montana and Hawaii, the regulatory climate. While Montana certainly is not ranked high in the CNBC summary of top states for business (it is 36), Hawaii fared worse. There are fair questions to ask: would this modest-but-ambitious start-up have even gotten off the ground in Hawaii? Why would an entrepreneur consider Hawaii as a place to open up shop? We're guessing that until some changes occur in the way we treat businesses and property owners in Hawaii, Asian growth may pass us by and the dreams of an APEC bounce to the economy will be more pipe dreaming, while ignoring the fundamental problems.

This doesn't mean that you need to pave paradise and put up a parking lot, either. Nor do you need to do away with land use and environmental laws, or the tax system. But in order to build the economy, it seems like changing the regulatory climate to allow people to make reasonable use of their property, harness their entrepreneurial spirit, and not feel like they are being taxed out of their homes would be much better steps than planting palm trees, and hoping for the latest white (or green) knight to ride in and save us.

November 10, 2011

From The Day comes the sad news that Anthony Palazzolo, the namesake of the U.S. Supreme Court's decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), has died.

Anthony Palazzolo, whose fight to develop his property in Misquamicut made its way to the U.S. Supreme Court, died Nov. 3 at the age of 91.

Palazzolo, a former auto wrecker and lifelong resident of Westerly, sued the state of Rhode Island for 17 years before ending his fight in 2005.

The case pitted environmentalists and property-rights activists from across the country. Environmental officials said Palazzolo's plan to fill and develop his wetlands would "strangle" Winnapaug Pond, since the marsh is a habitat for fish and shellfish, and filters and cleanses waters that end up in the pond.

November 9, 2011

Hold the date: on Tuesday, December 6, 2011, from 5:30 - 8:00 p.m., the University of Hawaii School of Law is sponsoring a reception at the Pacific Club, in Honolulu to celebrate the publication of Eminent Domain, a Handbook of Condemnation Law by the American Bar Association.

Since so many of the people who worked on the book are associated with the U.H. Law School (I authored two chapters, my Damon Key colleagues Mark Murakami and Christi-Anne Kudo Chock authored another, the appendix was authored by three Honolulu lawyers who are also alums, and Professor David Callies is one of our editors), the law school is being kind enough to throw a little party. It turned out it was just a happy coincidence that we were all associated with the project, and Professor Callies promises that he did not round up his former students to pitch in.

The book, as the title notes, is a handbook on condemnation law. Meaning that it is a one-volume deskbook for the non-eminent domain specialist who may not have the entire Nichols set on his or her bookshelf. It is comprehensive, but not overly detailed to give the reader an overview of the topic and a sense of the law. The chapters are authored by national experts in the area, and deal with everything from the power-to-take, to valuation, to relocation, to trial procedures. The appendix contains a nationwide survey of the public use issue. More information here.

This looks to be a very nice reception, with food and a hosted bar. Yes, a hosted bar. The authors have a limited number of invitations, so if you'd like to attend and if you can commit to joining us, please RSVP to me by emailing me not later than November 21, 2011, and I will get you an invitation. (I say "commit" since the sponsors are paying per RSVP, so we'd appreciate a firm commitment.)

We'd really like to see our readers, friends, and colleagues there, so please join us!

November 8, 2011

Hold the presses! In an unusual move spurred by a recent decision by the Florida Supreme Court, the petitioner has filed a supplemental brief in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), the case which asks whether the nexus and "rough proportionality" tests for a regulatory taking in Nollan and Dolan are limited to government demands for land.

Earlier this week, we thought we had seen the final briefs in the case, but alas no. The petitioner's supplemental brief discusses the Florida Supreme Court's opinion in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011), which held that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation. The brief argues:

The Florida Supreme Court’s decision in Koontz underscores the importance of the issue posed by the petition in this case. Moreover, it demonstrates the deepening divide between those courts such as the Supreme Courts of California and Texas which perceive no principled reason to distinguish between disproportional exactions of personal as opposed to real property and those Courts such as the Supreme Courts of Oregon and Florida, as well as the Ninth Circuit, that erroneously perceive in this Court’s decision in Lingle an unstated intent to limit Nollan and Dolan. Only this Court can decide this important conflict and bring clarity to this area of constitutional law.

November 7, 2011

Been tied up finalizing one brief and drafting another, so haven't had time to post, but here's what we're reading today:

Via the Land Use Law Prof blog comes notice of Professor Robert Ellickson's latest article, on The Costs of Complex Land Titles: Two Examples from China. This is the paper he presented at the recent Brigham-Kanner Property Rights Conference in Beijing. His presentation and paper generated a lot of reaction from the other scholars in attendance, and was one of the high points of the conference.

November 6, 2011

First, it was the petition for certiorari in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), which asks whether the nexus and "rough proportionality" tests for a regulatory taking in Nollan and Dolan are limited to government demands for land. Then, late last week the Florida Supreme Court disagreed with the California and Texas Supreme Courts, and held in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011) that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation.

We're following this case closely, so will have more after the Court releases its order from the conference. This seems like an issue that is ripe for resolution so to us the chances of a grant are as good as they can be.

November 4, 2011

This just in: on November 10, 2011, the U.S. Supreme Court will consider whether it has found the vehicle to resolve an issue the lower courts have vehemently disagreed upon, whether the Nollan/Dolan nexus/rough proportionality analysis is limited to exactions of real property. SeeWest Linn Corporate Park, LLC v. City of West Linn, No. 11-299.

The Ninth Circuit concluded it does not, disagreeing with the California and Texas Supreme Courts, which have held that Nollan/Dolan is applicable to all exactions, not just demands for land. Yesterday, the Florida Supreme Court weighed in, holding in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011):

Accordingly, we hold that under the takings clauses of the United States and Florida Constitutions, the Nollan/Dolan rule with regard to "essential nexus" and "rough proportionality" is applicable only where the condition/exaction sought by the government involves a dedication of or over the owner's interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner's interest in the real property subject to the dedication imposed.

Slip op. at 19. The court acknowleged the lower court split, and the West Linn petition:

Our holding today is consistent with the 2011 decisions of two federal appellate courts, both of which held that Nollan and Dolan are inapplicable to cases that do not involve the dedication of real property for a public use. See Iowa Assurance Corp. v. City of Indianola, 650 F.3d 1094, 1096-97 (8th Cir. 2011) (ordinance which required an enclosed fence to surround areas where two or more race cars are present not subject to a Nollan/Dolan exactions analysis); West Linn Corporate Park, LLC v. City of West Linn, 428 F. App'x 700, 702 (9th Cir. 2011) (refusing to extend Nollan/Dolan where city required developer to construct several off-site public improvements but did not require dedication of developer‟s interest in real property), petition for cert. filed, 80 U.S.L.W. 3135 (U.S. Sept. 6, 2011) (No. 11-299).

Slip op. at 19 n.3. More details to follow after we've had a chance to make a deeper reading of the opinion, but the larger question remains: will this influence the Supreme Court when it is deciding whether to grant the West Linn petition? Stay tuned.

If you subscribe to ZPLR, look for it in the mail (and if you don't, you should).

If you are not a subscriber (and again, you really should subscribe, ZPLR is one of the better ways, along with Gideon Kanner's Just Compensation, to keep up with the latest goings-on), the good people at West provide this freebie, as authors are allowed to post their own articles on their web site. So here you go.

Yesterday, I gave an informal presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court regarding the ability of property owners to challenge a determination by the U.S. Environmental Protection Agency that their property contained "wetlands" under the Clean Water Act, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

We videotaped the session, and (if tech cooperates) we will post the video. But in the meantime, stream the audio below, or download the 45mb mp3 here:

Here are the links to the briefs that have been filed in the case (so far):

Here's the Court's docket report. We will post the Respondent's Brief when it becomes available, and any amicus brief filed supporting the Respondent. Below are links with more video and information about the case:

November 1, 2011

Whenever a judge turns to rational-basis analysis, he's basically saying, 'You think two plus two equals five, and I don't know how to add.' -

Professor Richard Epstein, at an interesting debate sponsored earlier this evening by the Columbia Law School Federalist Society. Professor Epstein and Chief Judge Alex Kozinski (9th Cir.) debated the merits of Kelo v. City of New London (2005). Professor Epstein attacked Kelo and Chief Judge Kozinski defended the decision.

This has been a pretty good week for my St. Louis colleague Thor Hearne.

First, he obtained summary judgment in the Court of Federal Claims for the property owners in a rails-to-trails case, Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011). Next, his Cardinals come back from the edge to take the World Series. And now comes Rogers v. United States, No. 07-273L (Oct. 31, 2011), another good decision for property owners from the CFC.

The case involves a partial taking of an easement. Under the National Trails Act the federal government converted an abandoned railroad easement into a public recreational trail. Under Florida law the owner of the fee estate had the right to exclusive and unencumbered use and possession of their land. But, the federal law – and the Surface Transportation Board's order – destroyed and effectively eliminated the landowner’s state-law right to their land.

Today's decision involved the appropriate appraisal standard to value the property interest that the government had taken. The landowners and the DOJ both agreed on the before and after method. [The parties] also – originally – had agreed that the "before-taken" condition of the property was as an unencumbered fee parcel and the "after-taken" condition was the same parcel now encumbered with an easement for public recreation and "railbanking" allowing the STB possibility to authorize a new railroad across the land in the future.

But, literally at trial the DOJ changed their position. They argued everyone – including the DOJ themselves – had gotten it wrong. The DOJ argued the land needed to be reappraised using a new "before-taken" condition. Under the DOJ’s new "before-taken" condition the land was to be appraised assuming the property was still encumbered by the railroad right-of-way easement. This, the DOJ argued, means the government needed to only pay for the "nominal" or "incremental" cost of putting a public trail across an existing railroad easement.

Judge Williams entirely rejected the DOJ’s argument. Judge Williams called the DOJ’s arguments "wholly inappropriate," "misguided" and a "red herring." By making this argument, the DOJ delayed resolution of this case more than 14 months and caused the taxpayer’s interest liability to increase by more than an additional $1.4 Million.

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